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Book Review: Justice is the Crime
James G. France
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France, James G. (1973) "Book Review: Justice is the Crime," Akron Law Review: Vol. 6 : Iss. 1 , Article 8.
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France: Book Review
BOOK REVIEW
JUSTICE IS THE CRIME:
By LEWIS R. KATZ, LAWRENCE B. LITVIN,
RICHARD
H. BAMBERGER
The Pressof Case-Western Reserve University,
Cleveland, 1972. Pp. 386.
TiE
BOOK with the catchy title was once a report to the National
Institute of Law Enforcement and Criminal Justice, reporting some of
the more glaring deficiencies of the criminal justice system, notably those
which produce delays in adjudication of guilt. Principal locale is
Cleveland, Ohio, from which a statistical study, the ostensible reason for a
sizeable L.E.A.A. grant, is produced. After the parade of deficiencies, the
authors proceed to outline some twenty-five structural and procedural
changes aimed at reducing the overall time span from arrest to
adjudication to a maximum of sixty days.
For attractiveness to the lay reader there has been added a selection
of tragic individual case histories and a short hornbook chapter, copiously
footnoted, on the origins of the American Criminal Justice System. For
the professional there are appended twenty pages of tables, the product of
docket and file research in the Cleveland courts, and a highly worthwhile
one hundred-twenty-page digest of constitutional provisions and criminal
procedure statutes of the various states. There is a slap at the municipal
courts which "may be the worst courts in the nation." This may be very
true of metropolitan municipal courts, in relation to misdemeanors and
traffic offenses, but is not true in the context of delay of felony cases. In
this portion of the discussion, which is unfortunately somewhat disjointed,
the book makes a full survey of practices as they exist in the metropolitan
areas of various sections of the country, excepting, curiously the South
and Southwest.
The reform suggestions are bold, sometimes to the point of brashness.
Many of them are urgently needed, but few are new. They bear a curious
resemblance to those offered by the National Conference on the Judiciary
in its Concensus Report, and to some of the more recent reports and
recommendations of state court studies, all financed by L.E.A.A. grants,
some of them quite substantial. It is as if the real source of the proposals
was in the Department of Justice in Washington, all for the benefit of
the untutored provincials. These suggestions are of three types: Those
which are untried and radical; those which have been tried on a limited
basis with results not yet tested or documented with statistical studies as
to their usefulness, and those which have been unsuccessfully advocated
for years by reformers and management consultants.
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In the radical list are two suggestions guaranteed to whiten the hair
and roughen the tongue of professional defense counsel. The first, made
apparently with straight face, is that much time, possibly so much as a full
day, could be saved by eliminating the initial appearance of the defendant
before the magistrate and by delegating his purely ministerial functions of
advising the defendant as to constitutional rights, setting bail and selection
of defense counsel for the indigent to the police department booking
officer. Tempting as it might be to do so, no words of comment are wasted
on such a suggestion. The second bold step is the imposition of a requirement for a simplified two-way discovery procedure, with compulsory
disclosure of witnesses. This is a double improvement on the present
no-way practice which is the norm in most sections of the country, but the
typical criminal practitioner, who is all for open files in the prosecutor's
office, is likely to think twice before paying for a view of the state's file
by opening his own. A third radical suggestion involves not only a
recognition and regulation of the plea bargaining process, but a setting of
arbitrary limits on the period within which it may occur. Just why it is so
important to limit the bargaining process to the fourteen days following
the cutoff of discovery does not come through clearly in the book. Of
course, the scheduling of trials would be vastly simplified, but is the cost
to be paid in additional trials not too high?
In the second group of suggestions are proposals for the Omnibus
Hearing, the single court, the individual judge's docket and computerized
master scheduling. The first of these, the omnibus hearing, is one at which
the progress of discovery is reported and encouraged, protective and
coercive orders applied for, motions made to the form of the charge
and for exclusion of evidence, and determination cutoff dates for any
further motions. Federal courts in the southern district of California and
the western district of Texas have pioneered in applying this type of
hearing to their criminal cases and there is much favorable opinion from
participants to the effect that it speeds up the criminal justice process....
Unfortunately, hard data to back up this glowing impression is completely
lacking, or at least undisclosed by the book,1 and the omnibus hearing may
be in much the same position as to prove results as was civil pretrial
before the Rosenberg New Jersey experimental demonstration. The device
1 The latter is the case. The San Diego experiment in omnibus hearing has been
thoroughly dissected in report of the American Bar Foundation: The Omnibus
Hearing: An Experiment in Relieving Inefficiency, Unfairness and Judicial Delay,
American Bar Foundation, 1971, and in a law review article by the author of the
report: Nimmer, A Slightly Moveable Object: A Case Study in JudicialReform in the
Criminal Justice Process-The Omnibus Hearing, 48 DEN. L. J., 179 (1971).
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France: Book Review
Winter, 1973]
BOOK REviEW
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may or may not be a time saver, but apparently no one has bothered
the results, even on a side-by-side or a
to find out by measuring
2
study.
before-and-after
A second incompletely tested suggestion is that for the single court to
handle all felony cases from arrest to trial, eliminating the interplay
between committing magistrate, grand jury and felony trial court.
Conceptually such a plan has much to recommend it, but data from the
few courts which have embraced it, such as the Wayne County (Mich.)
Recorders Court, New Orleans Criminal District Court, the Florida
criminal courts of record and, in part, Philadelphia (The Philadelphia
Justice Consortium) is either not available or does not offer support for
the plan. A related remedy, suggested in the book and adopted in many
federal courts and recently in Ohio, is to assign criminal cases to all
available judges and to make each judge responsible for his assigned cases
from inception to final disposition, the so-called unlimited individual
judge's docket system. Here hard data on time saving should be available
from the Management Statistics maintained by the U.S. Administrative
Office of the Courts or from a time study of the Cleveland Courts on a
before-and-after basis. Unfortunately the book presents neither, although
detailed time data is already available from nearby Akron and Ravenna
after the compulsory changeover of the Ohio courts to the system. There
seems to be a curious tendency, on part not only of the authors but of
many proposers of reform, to ignore any possibility of proving their
case by statistical evidence. The reader, instead, is expected to rely
on the conceptual excellence of the device rather than a pragmatic
demonstration of its virtues.
Finally the suggestion is made that all courts and all judges have
their trials and hearings scheduled by a computerized master scheduling
system. To their credit, the authors take a gingerly approach to this
2The study conducted by the American Bar Foundation, supra note 1, was not a
controlled experiment on the model of the Institute for Effective Justice's New Jersey
pretrial study but the product of a random sampling on a before and after technique.
The report was adverse to the efficacy of the omnibus hearing as a device to speed
adjudication: "In addition, the hearing proved to be counter productive in that it
increased judge time per case and lengthened the time required to dispose of the
caseload." Nimmer, A Slightly Moveable Object, 48 DEN. L. J., 179, 188. "The
resulting impact on time lapse was severe. For all early disposition cases ... comparison of time lapses indicates an average increase of more than 12 weeks." The
Omnibus Hearing, p. 43. "In sum, the omnibus hearing did not speed the disposition
of cases. Its impact on time lapse was largely negative and mostly unexpected."
The Omnibus Hearing, p. 51.
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device, which requires a touching faith in the powers of a computer
engineer to solve all the problems of engaged counsel, of absent, ill and
unnotified witnesses, of counsel whose fees are uncollected and of
protracted trials in anywhere from twenty to fifty metropolitan courtrooms. Recent experience in a partial use of the device in Philadelphia
suggests that the faith may be somewhat misplaced.
Tried and true suggestions of the third class include dispensing with
the use of the grand jury where public preliminary hearing has been had
and elimination of the post-charge fixing arraignment, thus substantially
shortening the time from arrest to trial scheduling. Many of the
suggestions are excellent, even if not new. Unfortunately, in the case of
the grand jury, they fly into the teeth of present constitutional requirements in many states which the voters thereof have shown no inclination
to alter, despite the lack of protection to the accused afforded by
prosecutor-dominated grand juries. In the case of timing the preliminary
hearing, the proposals counter a dismaying tendency of judges to take
even longer periods in scheduling cases for preliminary hearing than
required by existing law.
The chief defect of the book, however, is not with the concepts and
suggestions, but with its use of statistical data to support the need for
them. It is understandable that propinquity to the authors' law school
would lead to selection of the Cleveland, Ohio, courts as test area to prove
how badly things are going under the current system. But why Cleveland
in 1968 for a 1972 report, when its system has twice been reorganized
since that year with beneficial results? And why four-year-old case
samples, when other recent studies 3 in the same area have dealt with
two- and three-year-old data? It gives the impression that the year was
deliberately selected to show the system in the worst possible light, as the
outstanding horrible in a parade of horribles. Suspicion as to this purpose
is deepened by the authors' reliance in the text on the arithmetical mean,
or straight-line average, as the key to understanding their completed
measurements of the no-longer existing Cleveland system. The arithmetical
mean is useful only when time and quantity distribute themselves in
relatively equal segments; it produces wide distortion when the bulk of
cases are disposed of in a comparatively short time and a relatively small
3 Order in the Courts, University of Akron, 1970, dealt with civil, criminal and
appellate time spans, the criminal case samples being from the spring of 1967.
Criminal Case Processing, Summit County, Ohio, report of Center for Urban Studies,
University of Akron, 1972, dealt with similar data in Akron for the calendar year 1970.
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France: Book Review
Winter, 19731
BOOK REVIEW
number take exceptionally long periods. This is the case, generally, in
criminal prosecutions, and it is particularly true in Cleveland, as the
authors' own tables demonstrate. The "average" time quoted consistently
in the book becomes somewhat meaningless when the time span of the
median case is approximately thirty percent shorter and nearly seventy
percent of cases are disposed of within the "average" time span. A further
problem is presented by a shift of terms in midstream of the discussion.
The authors speak in terms of pre-trial delay and most of their tables are
properly concerned with the time taken by the various preliminary steps
leading to trial. But when the tables turn to an overall time measurement
they speak of time from arrest to disposition, which is not the same thing
as trial or receipt of plea of guilty. Time to disposition includes the post
finding, pre-sentence period, that of the pre-sentence report and of
proceedings on motions for new trial and application for probation. This
period in Cleveland, Ohio, is particularly long, taking from two to four
months. The book thus supports its criticism of the lengthy pre-trialprocess with figures taken in substantial part from the post-trial process, with
which the authors demonstrate no concern. Thus, while their announced
average time span to disposition is 245 days in 1968, the median case in
Cleveland in 1968, based on similarity to the 1967 study, probably
4
reached trial or guilty plea in 120 days, or less than four months. This
may not seem like speedy justice, and in fact is not, but it is a far better
performance than the Cleveland courts are given credit for.
But with all its excesses of sob-sister additives, of Mitchellesque
dragooning of the preliminary appearance, of its statistically unreliable
conclusions which are perhaps to be expected of advocates trying to prove
5
a point where scientists would merely find the facts, the book makes one
point beautifully: The decay and impending collapse of American criminal
justice is the product of a selfish and financial gain-oriented distortion of
4 Total elapsed time for 1968, as shown in Table 1 of the book, was comparison
graphed with the total elapsed time for the 1967 cases reviewed in Order in the
Courts. The two progress lines were almost identical. It is fair to assume that
the progress line from arrest to trial or guilty plea in the Order in the Court Survey,
which was recorded, would hold true for the 1968 survey, which was not recorded
in satisfactory form. The median case in 1967 went to trial or plea in slightly less
than four months.
5 Neither in text nor in its elaborate bibliography does the book so much as mention
the 1970 Knight Foundation survey, the Omnibus Hearing report by the American
Bar Foundation or the Nimmer Denver Law Journal article. It is understandable
that Order in the Courts would be missed since it was not widely circulated and did
not appear in all standard law library bibliographies. Failure to list the American Bar
Foundation report is inexplicable and gives rise to the impression that the authors
simply did not desire to list any report carrying data adverse to their pre-formed
conclusions.
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a brilliantly conceived system, all for the profit of the American lawyer.
Certainly not since Mayer's "The Lawyers," has such a thorough piece
of reformist name-calling appeared. The authors ring every possible
change on the twenty-third chapter of the Gospel of Matthew, and
the book is well worth reading for its conclusion alone.
As for consequences, this reviewer, who drew censure from a local
bar association for a far milder criticism of a smaller portion of the criminal justice process, can only say: "Welcome to the club, Professor Katz."
JAMES G. FRANCE*
* The reviewer has been a professor of law at the University of Akron since 1966,
following service as Common Pleas and Court of Appeals judge (sitting in Cuyahoga
County, Ohio, by assignment). During the academic years 1970-71 and 1971-72 he
was on academic leave to conduct state court system surveys for the Institute of
Judicial Administration in Tennessee, South Carolina and Louisiana; jury system
studies in New Jersey and five midwestern Federal Districts, and work with the
Philadelphia Justice Consortium, studying the criminal process. He is the author of
Order in the Court (1970), a study of court delay in six northeastern Ohio counties,
including Cuyahoga.
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